2018 QCCQ 232, 2018 QCCQ 232

Osseiran c. Succession de Hagen 2018 QCCQ 232 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155336-169 DATE: January 22, 2018 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ IRMGARD OSSEIRAN Plaintiff v.

ANDRÉE RIVEST, ÈS-QUALITÉ OF LIQUIDATOR TO THE ESTATE OF the LATE HANS HAGEN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Irmgard Osseiran claims $10,330 from Andrée Rivest, in her quality as Liquidator to the Estate of the late Hans Hagen, (the “ Estate ”) in reimbursement of a loan that she claims to have granted to Mr. Hagen in November 2014.

The loan was not memorialized in writing. [ 2 ] The Estate denies the existence of the loan. questions in issue [ 3 ] The case raises the following questions:

a) Is Plaintiff’s testimony admissible to prove the existence of the alleged loan?

b) If so, has Plaintiff proved the existence of the loan? FACTUAL CONTEXT [ 4 ] Mr. Hagen and Plaintiff met in 1994 when Plaintiff took a refresher driving course at his driving school. They both spoke German and with this in common, they became friends and remained so, seeing each other regularly until Mr. Hagen passed away in September 2016. [ 5 ] Plaintiff claims that in the fall of 2014, she loaned Mr. Hagen an amount of $10,330 to purchase of new car.

She made a cheque for that amount payable to him on November 16, 2014, which he endorsed and cashed. [1] The same day, he entered into a contract with Auto-Prix for the purchase of Toyota Corolla 2011 for $10,307.75, which he paid cash. [2] [ 6 ] According to Plaintiff, Mr. Hagen undertook to pay her back at a later date. No terms of reimbursement or interest were discussed and no document was prepared to memorialize the arrangement. They did not speak of the loan afterwards before Mr. Hagen passed away in September, 2016. [ 7 ] After Mr. Hagen passed away, Plaintiff contacted Mrs. Rivest, Mr.

Hagen’s wife and the Liquidator to the Estate, to obtain repayment of the amount loaned. A letter of demand received November 5, 2016 requested payment of $10,330 within 10 days. [3] Having received no response, Plaintiff filed her claim on December 16, 2016. ANALYSIS

a) Is Plaintiff’s testimony admissible to prove the existence of the contract of loan? [ 8 ] The law does not require that a contract of loan of money be provided for in writing. Such a contract can be validly formed through a verbal exchange of consent. Certain restrictions exist, however, regarding how a verbal contract of loan can be validly proven. [ 9 ]

Article 2862 of the Civil Code of Québec (“ C.C.Q. ”) provides that parties may not, between themselves, prove a juridical act (such as a contract) by testimony, where the value in dispute exceeds $1,500. [ 10 ] There is an exception to this rule if there is a “commencement of proof” within the meaning of

article 2865 C.C.Q., namely where there is admissible evidence emanating from the opposing party that tends to corroborate the existence of the alleged juridical act. [ 11 ] These provisions read as follows:

2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500. However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2865.

A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact. [ 12 ] The Court is of the opinion that the cashed cheque of $10,330 payable to Mr. Hagen [4] and the contract between Mr. Hagen and Auto-Prix, [5] both dated November 16, 2014, render the existence of the alleged loan plausible and constitute a “commencement of proof”. [ 13 ] Plaintiff’s testimony is therefore admissible to establish the existence of the alleged loan.

b) Has Plaintiff proved the existence of the loan? [ 14 ] To succeed, Plaintiff must prove, on a balance of probabilities, [6] that she lent $10,330 to Mr.

Hagen, who bound himself to repay the amount to her after a certain time, thereby entering into a contract of loan. [7] [ 15 ] To meet this burden of proof, the evidence offered must be clear and convincing [8] and the alleged facts must not only be possible, but probable. [9] Where there is no written contract, as is the case here, the Court must consider the probative value of the oral evidence and decide the case on the basis of the most probable facts. [10] [ 16 ] Plaintiff affirmed at trial that Mr.

Hagen told her in the fall of 2014 that he intended to purchase of new car and asked her for a loan of $10,330 to do so. This is why she made the cheque for that amount on November 16, 2014, which he immediately endorsed and cashed. [11] Mr. Hagen undertook to pay her back, without interest, but no specific terms were discussed. This was a loan between friends; she trusted Mr. Hagen and did not feel the need to memorialize the arrangement in writing. [ 17 ] She also stated that she accompanied Mr.

Hagen to Auto-Prix on Côte de Liesse, in Town of Mount Royal, when he purchased a second-hand Toyota and traded in an older Toyota. [ 18 ] Plaintiff testified in a frank and convincing manner. Her testimony is corroborated by the cheque and sale contract, insofar as they bear the same date of November 16, 2014. Also, the amount of the cheque ($10,330) corresponds to the purchase price ($10,307.75), which was paid cash by Mr. Hagen. [ 19 ] Mrs. Rivest suggests that the $10,330 cheque could have been remitted in reimbursement of a loan that Mr.

Hagen made to Plaintiff or that it may be a gift, but she has adduced no evidence to support this allegation. She also argues that Mr. Hagen did not need a loan to purchase a new car. This may be true, but it does not preclude the existence of the alleged loan. Mr. Hagen could have had any number of reasons to ask for the loan irrespective of his financial situation. [ 20 ] On a balance of probabilities, the Court concludes that a contract of loan was entered into between Plaintiff and Mr. Hagen.

The Estate must therefore reimburse to Plaintiff the amount loaned ($10,330). [ 21 ] Plaintiff is also entitled to interest at the legal rate and the additional indemnity provided by law, [12] but only from the date upon which the Estate was placed in default from repaying the loan, namely on November 18, 2016. [13] FOR THESE REASONS, THE COURT: GRANTS the action. CONDEMNS Andrée Rivest, in her quality as Liquidator to the Estate of the late Hans Hagen, to pay to Irmgard Osseiran the amount of $10,330, together with interest at the annual rate of 5%, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Québec from November 16, 2016. WITH COSTS of $200 representing the judicial fees on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: January 15, 2018